Today’s oral argument in Kentucky v. King before the U.S. Supreme Court will try to consolidate a diverse approach taken by the various federal circuit courts as to when police may rely upon exigent circumstances for warrantless entry of premises. At present, there are five different tests used in the various circuit courts, each resembling the other (to a degree) except for that of the Second Circuit, which is more favorable to law enforcement. In the Second Circuit, the test looks to the lawfulness of the police action. If their action is conducted in a lawful manner then they cannot be said to have improperly created their own exigent circumstance. The remaining circuits use a variety of tests which look to unreasonableness of police action, foreseeability of the results of police action, and deliberateness of conduct. These tests are either stand alone or in some combination.
The underlying Kentucky Supreme Court case appealed to the U.S. Supreme Court developed a two-part test which looks to “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.”1 An affirmative response indicates that police cannot rely on the exigency. The second part of the test considers “whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.”2 Again, if the response is in the affirmative then the police cannot justify warrantless entry.
While it is a case which one might expect to result in clear differences along ideological lines among the justices, the facts of the King case are at this point relevant to consider the impact of the various tests and the eventual outcome from today’s oral argument.
Lexington-Fayette County police completed a “buy-bust” undercover detail at an apartment complex. The undercover officer signaled the deal had been consummated and provided a description of the suspect who was moving down a breezeway and heading back toward his apartment building. The back-up officers or “ghosts” were moving in and the undercover was telling them to hurry since the suspect was likely going inside. The suspect by all accounts was unaware he was being sought. The undercover radioed that the suspect entered the right rear apartment but they were away from the radio and did not hear this. Instead they arrived at a location — the apartment on the left — where they believed the suspect went to and immediately smelled a strong odor of marihuana.
Their logical conclusion was that the door had recently been opened so they knocked an announced their presence. From within they heard movement and believed the occupants, one of whom they believed to be the drug seller they were looking to apprehend, were destroying evidence of the narcotics transaction. They entered, found three individuals smoking marijuana and in possession of cocaine. Defendant King moved in court to suppress the evidence and though he eventually pled to charges, he preserved his suppression motion as it wound its way through the Kentucky courts.
The Kentucky Supreme Court — eventually siding with King — held that according to its analysis of its two-part test, the officers did not act in bad faith under the first part of the test but that their actions in knocking on the door was reasonably foreseeable to create the exigency upon which they relied.
My own problem with this reasoning brings me to an analogous situation of police being called to a domestic dispute. Consider the scenario where officers arrive at an apartment after being dispatched to a report of an active domestic. There is silence within the apartment upon police arrival but they knock to investigate. As a result of the knock, they hear a male voice begin to yell about the police being called and how he is now going to kill the female occupant within. They hear a woman scream and the distinct sound of what they believe to be a shotgun being racked. Police forcibly enter the premises, arrest the male, find no gun but in plain view there is powder cocaine on a table.
Have the police in this instance created the exigency? Is the seizure of evidence invalid? Clearly, the police action here was proper, but anyone who accepts the Kentucky Supreme Court analysis in the King case would believe the police would have created the exigency. This is a line of reasoning the U.S. Supreme Court will hopefully avoid and point to test(s) more like that of the Second Circuit Court of Appeals which is more straightforward and considers the lawfulness of police conduct.
The trick is deciding how the preset Court may go in this case. On the one hand you have a very active Court over the last two terms which has tackled Constitutional criminal procedure issues and these decisions have mostly favored law enforcement. Add to that the fact that Chief Justice John Roberts is no fan of the exclusionary rule. However, even those conservative Justices such as Scalia — who is pro-law enforcement — are also deeply wedded to the Constitution (as we would hope they all would be) and protective of the home. Within our Constitutional framework, that threshold across which leads to our homes is sacred ground which no judge is willing to defile.3
Justice Sotomayer, in her second year on the Court, is from the Second Circuit and may remain true to its position. And then there is the wild-card — Justice Kagan — the newest member who just does not give me the “warm fuzzies” when it comes to being pro-law enforcement.
In analyzing this case and its potential impact, it must be remembered that it is limited to the question presented before the Court for argument: “When does lawful police action impermissibly ‘create’ exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist?”4
In a 2002 per curiam opinion, the Court re-affirmed in Kirk v. Louisiana its reasoning in Payton necessitating a search or arrest warrant absent consent to enter a home.5 This case too involved a drug enforcement situation and a fear for destruction of evidence, yet the circumstances did not involve the “now or never” analysis extended by the Court to evidence preservation. 6
Kirk was a situation where the police could have easily obtained a warrant prior to entry of the home. This is exactly what the Court will be deciding in the Kentucky v. King case – at what point does the exigency either cease to exist or never be said to have actually existed in the first place, thus requiring a warrant? At the core of this inquiry will be the extent to which police conduct is judged to have precipitated the exigency. As we wait upon the Court’s decision we all know that no matter how the Court rules law enforcement will continue to adapt, improvise, learn and persevere.
1 King v. Kentucky, Case No. 2008-SC-000274-DG, at 12.
3 See eg., Payton v. New York, 445 U.S. at 585 (1980), quoting United States v. United States District Court, 407 U.S. 297 (1972) – “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”
4 See www.supremecourt.gov
5 Kirk v. Louisiana, 536 U.S. 635 (2002)
6 Roaden v. Kentucky, 413 U.S. 496 (1973)